We have been warning clients that the new National Labor Relations Board is expected to issue decisions and rules changing traditional federal labor law. Now we are beginning to see the NLRB use unfair labor practice cases as a vehicle for the development of such new law. Two recent cases addressing remedies for ULPs illustrate this point.
In J & R Flooring Inc., 356 N.L.R.B. No. 9 (Oct. 22, 2010), the NLRB ruled that, when an employer is found guilty of an unfair labor practice and is ordered to post a paper notice regarding the ULP in the workplace, the employer will also be ordered to give employees electronic notices if the employer customarily uses intranets, websites, e-mail or other electronic methods to communicate with employees.
The Board's recent decision in Kentucky River Med. Ctr., 356 N.L.R.B. No. 8 (Oct. 22, 2010) - which discontinued the Board practice of adding simple interest to back pay awards and replaced it with compound interest - will have great financial significance to employers. This change, by itself, was not particularly remarkable, except for the fact the Board ruled that the interest will be compounded daily - a far more generous award than the annual compounding of interest on back pay commonly granted under Title VII and other discrimination laws. See, e.g., Hylind v. Xerox Corp., 2010 U.S. Dist. LEXIS 98192 (D. Md. Sept. 17, 2010); Scott v. Peterson, 2010 U.S. Dist. LEXIS 81387 (N.D. Ill. Aug. 11, 2010); James v. AMTRAK, 2005 U.S. Dist. LEXIS 5401 (S.D.N.Y. Mar. 28, 2005); Hite v. Vermeer Mfg. Co., 361 F. Supp. 2d 935 (S.D. Iowa 2005) (stating that no legal authority could be found supporting monthly compounding).